Informal Discovery in Family Law Cases

JD Supra has this short post on the possibility of litigating a family law cases, such as divorce, child support, child custody, spousal support, etc., without making formal discovery requests. Instead of drafting up, say, interrogatories and requests for productions, the parties and their attorneys can just hash out an agreement about what documents and other information (tax returns, bank information, retirement accounts. vehicle information, etc.) need to be provided and simply give it to each other. Obviously, this approach has its limitations:

However, in many cases, informal discovery is just not possible. The litigation can become too acrimonious. Sometimes, the stakes are too high or the positions of the parties can become too adverse. Attorneys on the case also might not get along well enough to do discovery informally. In these cases, parties often have to issue discovery like requests for production, interrogatories or subpoenas to get the information they need.

I’d probably define the situations in which informal discovery is preferred to formal discovery even more narrowly. For instance, if the parties have a good idea of what the assets and liabilities are and do not want to invest the time and money necessary to fight for the last bit of what they might be “owed”. This should encompass uncontested cases, or maybe some cases that are only somewhat contested or not especially fact-intensive or complicated. But, in general, the safer course will be to send the other side discovery requests so you have a good grip on the facts in the case, can be smart about potential settlements, and don’t get taken by surprise if the case goes to trial.